¶1By the Court. The Plaintiffs claim to have a lien upon the property described in the complaint, on account of work done and materials provided by them, towards the erection of a building thereon, at the request of Defendant Bailey, then the owner of said lot.
¶2On the 26th day of August, 1857, and within the time prescribed by law, they filed in the office of the Clerk of the District Court of Ramsey County, their petition for a lien upon the property for the amount claimed to be due them, and in April following they commenced the present action. In the mean time the Legislature, by an act, approved March 20th, 1858, repealed, without reservation, the lien law of 1855, under which the Plaintiffs had proceeded; and the property has also been sold, by order of the court, to satisfy a mortgage given by Bailey, while the work was progressing. The other Defendant, Gilman, holds the title under this sale, and contests the Plaintiff’s lien, on the ground principally that as it was yet in an inchoate state, it was destroyed by the unconditional .repeal of the statute which created it.
¶3Whatever may be thought of the policy of such a course on ■ *551the part of the Legislature, we are clearly of opinion that the repeal of the law of 1855, without reservation, virtually destroyed all liens which had not been fully perfected.
¶4In the present case nothing had been done, at the time of the repeal, towards perfecting the lien, but to file a notice or petition with the Clerk of the District Coiirt. The lien had not been proved. No judgment' had been obtained, nor suit commenced. The first step only had been taken.
¶5The lien of the mechanic, builder, or material man, upon the building and real estate, does not arise out of his contract, but depends on the Statute alone for existence. It is a preference which he may secure if he proceeds in a particular way, but if, before he has fully perfected these proceedings, the Legislature sees proper to repeal the law, he really loses nothing — he is merely unable to secure an advantage which, without the statute, he is in no wise entitled to.
¶6The authorities to which wehave been referred, fully sustain the statement laid down in Smith's Commentaries on Statutory and Constitutional Construction, as the doctrine.of the adjudicated cases that “ where a statute gives a right in its nature not vested, but remaining executory, if it does not become executed before a repeal1 of the law, it falls with it, and eannot therefore be enforced.” This doctrine has repeatedly been applied to mechanics’ liens, and even to cases of attachment, where property has actually been seized but the law repealed before judgment was perfected.
¶7¥e are of opinion that the lien of the Plaintiff was not perfected at the time of the repeal of the law of 1855, and there being no reservation as to proceedings under that law, cannot now be enforced.
¶8The judgment of the District Court in so far as it made the sum recovered a lien upon the property is reversed.